Religious Rights on Razors Edge

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Judges, like most of us, prefer to resolve matters on the basis of simple issues rather than complex ones. Part of that is due to the need for judicial economy. But it may also be due to an application of "Ockham's razor," the concept minted in the 14th century by theorist William of Ockham. He postulated that, between two explanations – one complicated and one simple – the latter is most likely to be the better one.

As I reviewed the arguments made before the Supreme Court last week in the Hobby Lobby and Conestoga Wood Specialties cases, I counted no less than 11 important legal issues that haunt this case. Einstein restated Ockham's theory this way: "Everything should be made as simple as possible …." In an effort to satisfy both of these geniuses, I have come up with three "simple" reasons why the religious rights of Hobby Lobby and Conestoga, both of them closely-held, family-owned, for-profit, faith-based companies, ought to prevail over the federal HHS mandate that would force them to provide their employees with insurance coverage that includes abortion-inducing drugs.

First, the federal law protecting those companies, the Religious Freedom Restoration Act (RFRA), was passed by Congress with the clear understanding that it would protect religious persons from having to provide, or support, objectionable services intended to terminate pregnancies. As we pointed out in our brief to the Supreme Court, even Nadine Strossen, the past President of the ACLU, testified in Congress in support of RFRA, and predicted confidently that the law "will enhance the rights of those who conscientiously and religiously are opposed to abortion …." While much has been made of the fact that both companies are for-profit corporations, there is nothing in the text of RFRA that would exclude them from its protections. Further, Justice Sonia Sotomayor, who seemed otherwise hostile to the claims of the two companies, had to admit in open court that they nevertheless make "great plaintiffs," which I take to mean that they present an attractive illustration why some for-profit, faith-based employers might be entitled to the same religious rights that churches and private citizens enjoy.

Second, there is (in the words of RFRA) a substantial "burden" on the religious rights of those companies by virtue of the massive penalties they would have to pay under Obamacare to avoid violating their religious beliefs. Suggestions by a few of the justices that the financial bottom line of the companies would be unaffected ignores economic realities and renders that conclusion "absurd," as Justice Antonin Scalia put it during oral argument.

Third, the religious rights of Hobby Lobby and Conestoga clearly outweigh any governmental interest in forcing faith-based companies to collaborate with the termination of pre-born life. The argument that such compulsion does not collide with religious liberty is not only audacious, it is breathtaking. During the arguments in the Roe v. Wade case, then-Justice Potter Stewart wondered out loud whether the abortion question itself was, essentially, a "religious question." Eight times in the Roe v. Wade opinion, the Court referred to religious issues and in no less than 10 court decisions in the years that followed, the Supreme Court justices mentioned the religious aspects of intentionally ending pre-born life.

During the arguments last week, Justice Anthony Kennedy, a key swing vote, seemed conflicted. He appeared concerned that the "rights" of the employees of Hobby Lobby and Conestoga to access the controversial federally-mandated insurance coverage would be impaired; yet he also seemed equally perplexed that the government's position, if upheld, could ultimately lead to private citizens, private medical practitioners, and private employers being forced by Washington to provide abortions for others, regardless of religious conscience. Some of the justices asked about potential harm to employee "rights," and to the rights of the public to obtain insured coverage for those medical procedures, like vaccinations, that are deemed objectionable by certain faith groups. Yet that approach strikes me as falling far short of a "compelling" government interest sufficient under RFRA to defeat the rights of these two companies, particularly because, in the decades since the passage of RFRA, this "parade of horribles" envisioned by the government lawyers has yet to ever materialize.

Will the Court adopt this kind of "Ockham's razor" approach, simplifying this complex case, and correctly upholding the religious freedoms of Hobby Lobby and Conestoga? Sadly, that is hard to say. After all, predicting Supreme Court cases is, in the end, a complicated rather than a simple business.